Toronto Injury Lawyer Blog
Let’s say that you get involved in a car accident during the course of your employment. What do you do? Who can you sue? Is it a WSIB claim? Is it a car accident case? Or is it both?
This issue comes up a lot in the practice of a personal injury lawyer, who does a lot of car accident work.
Let’s make something very clear. You cannot both claim WSIB benefits and sue, and claim accident benefits at the same time.
You you only pick one route. That decision, is called an “election“.
The Plaintiff can either “elect” to receive WSIB benefits and go the WSIB route.
Or the Plaintiff can opt out of WSIB, and “elect” to receive accident benefits, and go the suing route.
The Plaintiff cannot go both routes.
Sometimes, a Plaintiff does not have a choice and must go through the WSIB route. Here is an example of such a case:
The Plaintiff is driving his/her company car enroute to a jobsite. The Plaintiff gets involved in a terrible car accident. The car accident is not the Plaintiff’s fault, and the Plaintiff wants to sue the at fault driver for his/her damages and pain and suffering. But, as it turns out, the at fault driver was also driving a company car for a job. Both parties were deemed to be Schedule 1 employees who were in the course of their employment at the time of the car accident. Even though the parties worked for two completely different and unrelated employers, the fact that both were in the course of their employment at the time of the car accident is significant and presents a barrier to personal injury litigation. The reason is that the law says that a Schedule 1 employee in the course of his/her employment cannot sue another Schedule 1 employee who was also in the course of his/her employment (even for a car accident case!). As a result, even though the Plaintiff may want to go the personal injury litigation route, s/he cannot do so. WSIB acts as a shield protecting the employers (and the at fault driver) from any litigation. The injured accident victim has no choice but to pursue WSIB benefits. The injured accident victim can try to advance a claim for damages against the at fault driver; but the case will in all likelihood get kicked out of Court on Application to the WSIB.
How does on “elect” to opt out of WSIB benefits?
It should be simple, but it’s not. Some forms are available online. Others aren’t.
In most cases, the WSIB case worker will provide you with the election form whereby the injured party needs to state that s/he is opting out of receiving WSIB benefits in order to pursue a third party claim against the at fault party. Remember, the third party which the injured party is seeking to sue cannot be his/her employer, particularly if they are covered by WSIB. WSIB acts as a shield for employers protecting them from lawsuits so that they can keep their legal costs and operating costs down. This policy makes sense because we want employers to invest in their business operations and in their employees, rather than having to have to pay for the high costs associated with litigation and injury claims. As a society, we want to make the costs for running a business lower instead of so high that the business cannot run or needs to shut down operations.
Is it always a good thing to opt out of WSIB?
No!
Sometimes, the injured party needs to stick with WSIB. In the example of where an Schedule 1 Employee needs to sue a Schedule 1 Defendant. That cannot happen and the injured party must stay within the WSIB system.
Another example is where liability for the car accident is an issue. Let’s say that the injured party was at fault for the subject car accident. They will have a hard time showing that the other party was at fault. In that example, it might be best to stay within WSIB because the lawsuit against the other party will fail on liability. In WSIB, it doesn’t matter whose at fault. All that matters is that an accident happened. Fault is irrelevant. In those cases, it would be best to stick to WSIB.
It may also be advantageous to stick with WSIB where the injuries are very minor. There is no statutory threshold or deductible to receiving WSIB benefits. Conversely, in order to have a successful third party claim for damages for pain and suffering, the laws are very rigid and onerous on the Plaintiff. S/he must be very seriously and permanently injured in order to have a successful claim. The damages are also subject to a statutory deductible which as of the time of preparing this Toronto Injury Lawyer Blog Post currently sits at $46,790.05 for general damage awards below $155,965.54. This amount goes up each year on January 1st with the rate of inflation. Sometimes staying within the WSIB framework is the only option, or the best option.
There are cases where it may be advantageous to opt out of WSIB. In cases where liability and coverage won’t be issues. Meaning that the Defendant is clearly at fault for the car accident, and that the Defendant was a normal civilian driver who was not working or in the course of his/her employment at the time of the car accident. Bust simply because there aren’t any liability or coverage issues doesn’t mean that it’s best to go with the suing route. The injuries needs to be substantial. Those injuries need to meet a medico-legal threshold test in order to merit recovery at law. If the injuries are minor, or temporary, then it may not be to a Plaintiff’s advantage to opt out of WSIB. The decision to opt in, or to opt out of WSIB benefits in order to pursue a third party claim needs to be carefully considered; especially with the assistance of an experienced personal injury lawyer.
